Impartiality and the Rule Against Bias (L10) Flashcards
What is procedural fairness?
The courts apply general principles of procedural fairness.
These can be used to challenge decisions even where no specific statutory rules have been broken.
These grounds of review relate to decision-making procedure rather than to outcomes.
‘Procedural impropriety’ in Lord Diplock’s classification.
The principles apply both to courts and to administrative bodies.
What are the two main principles of procedural fairness?
Impartiality/rule against bias.
Fair hearing/procedure.
What is the difference between impartiality and independence?
These concepts are logically distinct.
Impartiality = the required state of mind for adjudication (and other decisions, to a degree).
Independence = a structural relationship between persons and institutions.
But these concepts are frequently discussed as if they were interchangeable, including in cases.
How is financial interest a potential cause of bias?
A judge who has a pecuniary interest in a case, however small, should decline to sit.
How does Dimes v Proprietor of the Grand Junction Canal (1852) 3 HL Cas 759 demonstrate financial interest as a potential cause of bias?
Lord Chancellor held shares in the canal company. He might have benefitted in deciding in favour of the canal company as it may have increased his share value. Small financial benefit, was not declared to the parties.
Decision set aside.
How does Sellar v Highland Railway Co 1919 SC (HL) 19 demonstrate financial interest as a potential cause of bias?
An arbiter has a shareholding in the company.
How are other personal interests a potential cause of bias?
Family relationships, business associations, etc with a party appearing before a court or tribunal may also indicate that the adjudicator should not sit.
Locabail (UK) Ltd v Bayfield Properties Ltd 2000 QB 451.
How is unequal treatment of parties a potential cause of bias?
Adjudicators should accord parties appearing before them equal treatment and should avoid creating the impression that one party has had an opportunity to influence the tribunal which the other has not.
How does Barrs v British Wool Marketing Board 1957 SC 72 demonstrate unequal treatment of parties as a potential cause of bias?
Representative of the valuer, but not of the other party was present when the judges retired. This is clearly unfair.
How does McDonnell, Petitioner 1987 SLT 486 demonstrate unequal treatment of parties as a potential cause of bias?
Clerks were local authority employees, the local authority was the landlord involved in the aggrieving of the housing benefit.
How is mingling of functions a potential cause of bias?
A person should not act as prosecutor and judge in the same case. Similarly, participating in appeals from one’s own decisions.
Hannam v Bradford Corporation [1970] 1 WLR 937.
How is partiality towards persons or groups a potential cause of bias?
Where an adjudicator appears to show some hostility towards or favour for particular persons or classes of persons.
Bradford v McLeod 1986 SLT 244.
Miners strike. Included clashes between miners and police.
Sheriff was heard saying that he would not grant legal aid to striking miners. Clearly showed hostility and prejudice. Lawyer invited the sheriff to recuse himself, he did not.
How is a preconceived opinion a potential cause of bias?
Where it is suggested that an adjudicator has made up his mind in advance on the issue to be considered. Where this is based on the adjudicator’s general views on social policy, the challenge is unlikely to succeed.
McGeehan v Knox 1913 SC 688.
How does London and Clydeside Estates Ltd v Secretary of State for Scotland 1987 SLT 459 demonstrate that prior involvement in a matter may create the appearance of bias?
Sec of State had to make a decision on a planning matter. Some years before he had been involved in that development when he was an MP.
Argued he couldn’t make that decision impartially in his role. Rejected.
How does Davidson v Scottish Ministers (No 2) 2005 1 SC (HL), [2004] UKHL 34 demonstrate that prior involvement in a matter may create the appearance of bias?
Prisoner suing Scottish Ministers for damages. Asks for order for specific performance to be made against them.
Does the statute say an order for specific performance can be made against the Crown? He says it’s allowed, the government says it isn’t.
The judge holds it is allowed. Before this, he had been the Lord Advocate. He had said when this statute was being introduced that his fellow Scottish Ministers did not need to worry about this provision as it would not affect them.
Should he have been allowed to decide this case?
Set aside as there may have been an appearance of bias.
